Florida Supreme Court justices are sounding skeptical about an appeal from the ringleader of a mass killing over an Xbox video game system.

FRANK FERNANDEZSTAFF WRITER

Troy Victorino, sentenced to die for his part in the killings of six young people who were stabbed and bludgeoned in Deltona in 2004, was framed as the ringleader and did not get a fair trial, his attorney told the Florida Supreme Court on Thursday.

Victorino was sentenced to die after his conviction in 2006 for leading the savage attack, which left behind a bloody scene of carnage on Telford Lane. The case was dubbed the Xbox murders because the attack was motivated in part by a dispute over a video game system. The Florida Supreme Court already denied one appeal in 2009 from Victorino.

On Thursday, justices in Tallahassee heard another appeal in which Victorino's attorney Christopher Anderson argued he was denied the right to face his accuser when co-defendant Robert Cannon refused to be cross-examined. The state Supreme Court will issue a ruling on the appeal at a later date.

“Unfortunately Mr. Victorino's trial lawyer failed to move for a mistrial, failed to point out to the court that Cannon's shutdown and refusal to answer cross-examination questions amounted to a fatal violation of Victorino's Sixth Amendment rights to confront adverse witnesses,” Anderson said.

But Kenneth Nunnelley, an assistant attorney general, argued for the state that there was other evidence against Victorino besides Cannon's statements.

“Witnesses other than Cannon are the ones who described how Mr. Victorino planned the assault on this house,” Nunnelley said, “how he assigned the various other defendants where they were to go in this house. It looked more like a SWAT team's take down of a drug house than what we normally see even in these most brutal cases that we talk about.”

Along with Victorino, Jerone Hunter was also sent to death row for the murders. Cannon and Michael Salas were sentenced to life in prison.

On Aug. 6, 2004, Victorino led the group to 3106 Telford Lane. Victorino kicked in the door, and armed with bats and a switchblade they beat and stabbed the six people inside to death.

Justice Barbara J. Pariente asked whether defense attorneys should have asked that all of Cannon's testimony be stricken when he refused to testify later.

Nunnelley said that would have resolved the issue but nonetheless the problem did not rise to the level of requiring that Victorino's conviction be thrown out.

Pariente said it did not appear to reach that level.

“I agree that it doesn't most likely rise to the level of undermining confidence in the outcome . . . but I'm having trouble thinking that it just would be, ‘Well it didn't matter that the defense attorney didn't object,' ” Pariente said.

But Justice Charles T. Canady said Cannon's credibility was damaged when he refused to testify.

“It seems to me that when Cannon refuses to cooperate and stops answering questions his credibility for that jury is kind of shot anyway,” Canady said.

But Anderson said if defense lawyers had been able to fully cross-examine Cannon it would have painted a different picture of Victorino.

“If defense counsel had been able to properly cross-examine Cannon, they would have seen that Mr. Victorino was being framed as the ringleader. This was not a mastermind ringleader type situation,” Anderson said. ¶ Justice Peggy A. Quince asked him about evidence that Victorino stated he was going to “go over there and take care of the situation basically.” ¶ “This is where Cannon hurt him, your honor,” Anderson said. “. . . Victorino is not the wild card loose cannon killer that he was made out to be. The first thing he did is he went to the police. He went to the police and said can you help me get my property back.” ¶ Canady interjected, saying it sounded like Victorino had a plan in comments he made to the police. ¶ “What he said was ‘I'll take care of it,' something to that effect, didn't he? Sounds kind of ominous,” Canady said. ¶ Justice Jorge Labarga asked Anderson whether Victorino wasn't much older than the rest. ¶ Anderson said Victorino was 27 at the time and the others were 18. ¶ “And wasn't Victorino about 6 foot 7 (inches) tall,” Labarga said. ¶ “Yes, your honor,” Anderson said. ¶ “And he is not the ringleader?” Labarga said. ¶ “That made him vulnerable to being framed as the leader,” said Anderson, adding that Victorino only had an average IQ and had mental disorders due to his upbringing. ¶ In closing, Nunnelley said Victorino was where he belonged. ¶ “Mr. Victorino was the ringleader in this case and Mr. Victorino went to the extent of reserving certain victims for himself,” Nunnelley said. “This man was the ringleader and the reason he got a death sentence is because he deserves it not because of anything his trial attorneys failed to do.”